On December 13, 2023, the long-awaited revised Memorandum of Agreement between Education and Law Enforcement (MOA) was released. (See Release of the 2023-2024 Memorandum of Agreement Between Education and Law Enforcement Officials.) The MOA is a crucial document for all school leaders to know and understand. It outlines how and when information must be shared, may be shared, and cannot be shared between education and law enforcement.
In this article, we highlight one key area where the agreement has been revised in order to clarify responsibilities – reporting of Bias-Related Acts. As we discuss in more detail below, the stakes have been raised for ensuring accurate reporting, since a failure to report may be considered as potential evidence that a school district has violated the New Jersey Law Against Discrimination, which in turn could lead to significant legal ramifications.
Defining Bias-Related Acts
New Jersey defines a bias-related act as “an act that is directed at a person, group of persons, private property, or public property that is motivated in whole or in part by race, color, national origin, ethnicity, gender, gender identity or expression, disability, religion, or sexual orientation.”
It is critical to note that in many cases a bias-related act will not rise to the level of a crime, and the reporting obligations outlined below apply to ALL bias-related acts, even those that are not considered potential hate crimes.
The Reporting Obligation to Law Enforcement
Under a long-standing New Jersey administrative code provision, N.J.A.C. 6A:16-6.3(e), school districts are required to report to both local enforcement and the bias investigation officer for the county prosecutor’s office whenever school officials develop reason to believe a bias-related act has been committed or is about to be committed on school grounds, or has been or is about to be committed by a student on or off school grounds, or a student enrolled in the school has been or is about to become the victim of a bias-related act on or off school grounds, or during operating school hours.
The reporting obligation works as follows:
- A school employee who becomes aware that a bias-related act has been committed, or is about to be committed, must immediately notify the school principal (or designee if the principal is unavailable)
- A designated school official (typically the school principal or a central office administrator) promptly notifies the local police department and the bias investigation official for the county prosecutor’s office
- IF there is reason to believe that an act of violence has been or is about to be committed as part of the bias-related act, then local police and county prosecutor’s office must be immediately notified.
Section 3.16 of the revised MOA outlines district reporting obligations related to bias-related acts. It should be noted that district officials are permitted to assess whether in fact the act in question was motivated by one of the protected characteristics (race, ethnicity, gender, etc.)
Specifically, the MOA indicates that “In weighing whether a student’s conduct meets this definition and triggers a mandatory report, school officials should consider whether the student’s conduct was motivated by a protected category. When weighing motive, educators may therefore consider the context of the incident and the age, maturity, and competency of the student(s) implicated in a potential bias-related act, since those factors would be considered by law enforcement and county prosecutors.”
The process of determining motive will permit school officials to engage in some preliminary information gathering in order to understand the context of the incident. However, school officials should be cautious in determining that an act was definitely not motivated by a protected characteristic, since it only needs to be motivated “in part” by a protected characteristic.
While determining whether an incident was motivated, at least in part, by a protected class, is critical for determining whether to report a bias-related act, determining the intent of the alleged aggressor is not an essential part of determining whether an incident meets the HIB definition. There are numerous examples of confirmed HIB incidents where the aggressor did not intend harm or even intend to single out the student because of a particular characteristic, but nevertheless the victim reasonably perceived that the behavior was motivated by that characteristic. The reasonable perception of the victim, rather than the actual intent of the aggressor, is key to the HIB analysis. On the other hand, the subjectve intent of the aggressor is critical for purposes of reporting bias-related acts.
Under-Reporting of Bias-Related Acts
Statewide data indicates that there has been significant under-reporting of bias-related acts, due largely to confusion about this reporting requirement. For example, in the 2020-21 school year, school districts in New Jersey reported 1125 confirmed HIB incidents involving a protected class under state or federal discrimination law, but only 245 incidents of bias-related acts being reported to law enforcement. In fact, all 1125 confirmed incidents of HIB involving protected classes should have been reported to law enforcement as bias-related acts. In addition, some alleged HIB incidents that were not confirmed also should have been reported. For example, if the incident involved one student targeting another because of a protected class, it is possible that the incident did not result in substantial disruption for the targeted student or interference with the orderly operation of the school or the rights of others. If so, it would not meet the HIB definition. But if the act was, in fact, motivated at least in part by the protected characteristic, it would still trigger a report to law enforcement as a bias-related act.
HIB and Affirmative Action Reporting Obligations Also Triggered
The definition of a bias-related act is quite broad, and includes a significant portion of incidents that would also need to be addressed as potential harassment, intimidation or bullying (HIB), since the characteristics that are included in the bias-related act definition are often the motivating factor in HIB incidents.
School officials should recognize their other obligations related to addressing bias-related acts. Any suspected bias-related act will also trigger a requirement to investigate whether or not the incident meets the definition for an act of harassment, intimidation or bullying (HIB). In addition, since bias-related acts involve protected classes under state and/or federal anti-discrimination law, districts are also required to ensure that the district Affirmative Action Officer (AAO) is made aware of all bias-related acts. While the district should still permit the anti-bullying specialist to be the lead investigator for those incidents, the AAO should be given notice of the incidents, the opportunity to participate in the investigation if so desired, notice of the outcome of the investigation, and the opportunity to weigh in regarding both individual and systemic responses (e.g., if the incident is identified as part of a pattern of bias-related acts related to a protected category).
Consequences of Failure to Report
The revised MOA clarifies some of the serious consequences for failing to properly report and/or investigate (as possible HIB) bias-related acts. The MOA stresses that a failure to report a bias-related act, or inconsistent reporting of such acts based on the characteristics involved, could represent a violation of the New Jersey Law Against Discrimination.
As noted in the MOA:
All schools subject to this Agreement constitute places of public accommodation subject to DCR’s jurisdiction within the meaning of the LAD. School officials should be aware that as employees and agents of a place of public accommodation, they cannot discriminate against or harass students, and must take action to stop bias-based harassment of students if they knew or should have known about it, even if the harassment is perpetrated by a fellow student.
School officials are prohibited under the LAD from administering this Agreement in a manner that discriminates based on race, ethnicity, gender, disability, or any other protected characteristic. A school discriminates within the meaning of the LAD if it makes (or fails to make) mandatory referrals under Article 3 of this agreement differently with respect to students of one race, ethnicity, gender, disability status, or any other protected characteristic differently than it does students of another race, ethnicity, gender, disability status, or other protected characteristic.
School and law enforcement officials should be aware that, in some cases, a school’s failure to appropriately intervene in and investigate bias-related acts may also constitute a violation of the LAD. When a law enforcement agency is confronted with a suspected or confirmed violation of New Jersey’s Law Against Discrimination, the victim shall be informed of the Division on Civil Rights’ jurisdiction and referred to the Division, if appropriate, and the Division on Civil Rights shall be contacted.
The potential legal consequences of a violation of NJLAD are significant. In the landmark L.W. v. Toms River (2007) case, the district was found to have violated NJLAD by failing to take measures reasonably calculated to end the harassment of a student based on that student’s perceived sexual orientation. The case resulted in monetary damages being paid by the district. In addition, there are many cases where school employees have faced significant disciplinary action for failure to properly report, investigate, and/or otherwise address bias-related acts in school, including extreme cases that resulted in loss of tenure, suspension of certificate and reduction in pension.
Determining Reporting Protocols
Each district should work closely with your local law enforcement and county prosecutor’s office to determine proper protocols for making reports of bias-related acts. Key steps include:
- Identifying the individual(s) responsible for reporting bias-related acts to local law enforcement and the county prosecutor within your school district. This should ensure that a backup person assumes responsibility if the primary individual is not available, so that reports are submitted in a timely manner.
- Establishing protocols for making initial determinations as to whether the alleged incident was motivated, in whole or part, by the protected characteristic, which in turn would trigger the requirement to report as a potential bias-related act. Note that this is a different inquiry than the one involved in determining HIB. The bias-related act reporting inquiry involves an assessment of the subjective intent of the accused aggressor, whereas the HIB investigation inquiry involves the reasonable perception of the alleged victim regarding motive.
- Reaching agreement with your local law enforcement and county prosecutor’s office about the protocols for reporting bias-related acts, including:
- who in particular should be notified from local law enforcement and the county prosecutor’s office,
- the manner of such notice (e.g. is email notice sufficient when the incident does not involve actual or planned violence and,if so, the appropriate email address)
- what is considered “prompt” notification (e.g. same day, same week, etc.) which would apply to most reports,
- what is considered “immediate” notification for reports involving acts of violence or where there is otherwise reason to believe a life will be threatened
- what protocols will be followed by local law enforcement and the county prosecutor’s office in determining if, when, and how they will respond to reports received from the school district
- Determining if local law enforcement and the county prosecutor’s office expect any level of investigation by the school district prior to reporting alleged incidents to local law enforcement and the county prosecutor’s office, or rather that all such allegations be reported without any investigation to determine the underlying facts, beyond the determination of the subjective intent of the alleged aggressor. Note that school districts must report bias-related acts and any request by local law enforcement or a county prosecutor’s office to simply ignore this requirement would be inappropriate.
- Establishing protocols for notification to parents involving the reporting of suspected bias-related acts (e.g., build into a standard notice that is part of the HIB investigation notice for those alleged HIB incidents involving protected classes, build into code of student conduct, build into parent and handbook, etc.). These protocols should ensure that parents understand that any such notice is required under state law and does not necessarily mean that there is any allegation that a crime has been committed.
- Ongoing analysis of data regarding bias-related acts, including reviewing data on alleged and confirmed acts, to track patterns that emerge, and to ensure full compliance with reporting requirements. This should include the sharing of publicly available data with School Climate Teams in each school in the district, to assist in addressing any trends that emerge.
For more information on training available through LEGAL ONE to assist school officials in addressing these complex issues, please refer to the LEGAL ONE website – www.njpsa.org/legalonenj/ .